Dewayne Van Tilmon v. State of Arkansas

Cite as 2024 Ark. App. 71
ARKANSAS COURT OF APPEALS
EN BANC
No. CR-23-698

Opinion Delivered January 31, 2024

DEWAYNE VAN TILMON APPEAL FROM THE GARLAND
APPELLANT COUNTY CIRCUIT COURT
[NO. 26CR-19-701]
V.
HONORABLE MARCIA R.
HEARNSBERGER, JUDGE
STATE OF ARKANSAS
APPELLEE DISSENTING OPINION ON MOTION
TO FILE BELATED BRIEF

KENNETH S. HIXSON, Judge

“Ignorance of the law” constitutes “good cause” under Arkansas Supreme Court Rule 4-

4(h)(1), which provides that the due date of a brief may be extended “by the Court upon a

written motion showing good cause”; or so says the majority of this court. I respectfully disagree.

I. History

The appellant, an incarcerated person, was convicted of a felony in Garland County

Circuit Court. The appellant appealed his conviction to the Arkansas Court of Appeals, and

the conviction was affirmed. The appellant filed a timely pro se petition pursuant to Arkansas

Rule of Criminal Procedure 37 (Rule 37 petition) in the circuit court and alleged that he was

denied effective representation of counsel. The circuit court held a hearing and subsequently

denied the Rule 37 petition. The appellant timely filed a notice of appeal from the denial of his

Rule 37 petition to the Arkansas Court of Appeals. The appellant’s brief was due on November
29, 2023, and the appellant received a one-week extension, making his brief due on December

6, 2023. For purposes of this dissent, we presume that the brief was, in fact, deposited into the

prison mailing system on December 6, 2023.1 The brief was received by the clerk of this court

on December 11, 2023, which was five days past the due date, rendering the brief “untimely.”

Because the brief was untimely, the Criminal Justice Coordinator for the Arkansas Supreme

Court wrote the appellant a letter and advised the appellant that if he wished to pursue the

appeal, he should file a motion to file a belated brief. The appellant filed a motion for belated

brief on December 28, 2023. The court of appeals granted the motion and extended the time

for appellant to file his brief. It is the disposition of this motion for belated brief that is the

subject matter of this dissent.

In the appellant’s motion for belated brief, he argued that “appellant was under the

impression that Ark. R. App. P. (Crim.) Rule 2(b)(3) [sic] concerning the mailbox rule not only

applied but was the proper method of a timely filed brief.” The appellant further explained that

he believed his brief was timely filed because it was notarized and deposited into the prison mail

system on the due date, December 6, 2023. The appellant made no additional arguments.

While I appreciate appellant’s argument that the “prison mailbox rule” is the proper method to

file a timely brief, I disagree.

The “prison mailbox rule” has its origins in Houston v. Lack, 487 U.S. 266 (1988). In

Houston, the U.S. Supreme Court was interpreting the federal rule regarding the timely filing of

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While there is no independent proof that the brief was deposited on December 6, 2023,
the appellant states in his motion that “the brief was deposited into the prison mailing system
on December 6, 2023, notarized and stated under penalty of perjury[.]”

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a notice of appeal. The Houston Court rightfully noted that federally incarcerated appellants do

not have the same access to legal services and mail services as appellants not incarcerated and

held that a notice of appeal under the federal rule was timely filed if placed in the prison mailbox

within the prescribed time. After this 1988 Houston opinion, several courts around the country

have discussed whether the prison mailbox rule applies exclusively to notices of appeal or

whether the prison mailbox rule applies to other mailings by incarcerated defendants. The

jurisdictions have split.

Twenty-seven years later, on September 1, 2015, Arkansas adopted its version of the

prison mailbox rule. There are two separate applications for the prison mailbox rule in

Arkansas: (1) the application of the mailbox rule for the filing of Rule 37 petitions to the circuit

court; and (2) the application of the mailbox rule for the filing of a notice of appeal to the Arkansas

Court of Appeals or the Arkansas Supreme Court. The rules generally mirror each other.

Arkansas Rule of Criminal Procedure 37.2(g) is the Arkansas prison mailbox rule for

Rule 37 petitions filed in the circuit court. Generally, it provides that “a [Rule 37] petition filed

pro se by a person confined to a correctional or detention facility . . . shall be deemed filed on

the date of its deposit in the facility’s legal mail system if the following conditions are satisfied: .

. . [confinement, pro se, first-class postage, notarized, etc.].”

Arkansas Rule of Appellate Procedure–Criminal 2(b)(3) is the rule for appeals to the

Arkansas Court of Appeals and the Supreme Court. Rule 2.(b)(3) generally provides: “If a

person confined in a correctional or detention facility files a pro se notice of appeal . . . from a

circuit court judgment denying postconviction relief under Arkansas Rule of Criminal

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Procedure 37 . . . it shall be deemed filed on the date of its deposit in the facility’s legal mail

system if the following conditions are satisfied: . . . [confinement, pro se, first-class postage,

notarized, etc.].” (Emphasis added.)

These two rules are jurisdictional and are interpreted accordingly. A circuit court does

not have jurisdiction over a Rule 37 petition unless the petition is timely filed. An appellate

court does not have jurisdiction over a Rule 37 appeal unless the notice of appeal is timely filed.

The two rules essentially mirror each other, and neither rule extended the prison mailbox rule

beyond the jurisdictional filing requirements. In drafting the two rules, we can only presume

the Arkansas Supreme Court was cognizant that some courts around the country had extended

the prison mailbox rule beyond the jurisdictional filings to other mailings. However, it is clear

in reviewing the unambiguous language of the two Arkansas rules that the Arkansas Supreme

Court did not extend the application of the prison mailbox rule to mailings other than those

jurisdictional filings provided in Arkansas Rule of Criminal Procedure 37.2(g) or Arkansas Rule

of Appellate Procedure–Criminal 2(b)(3).

Returning to appellant’s argument that his brief was timely because he deposited the

brief in the prison mail system on the due date, December 6, 2023, the appellant is simply

incorrect. Arkansas Rule of Appellate Procedure–Criminal 2(b)(3) applies only to the timely

filing of notices of appeal and not to timely filing of appellate briefs. Therefore, when the

appellant’s brief was received at the clerk’s office on December 11, 2023, it was five days late and

untimely.

That does not end our discussion; but it could. The appellant did not argue any other

authority to excuse the untimely filing of his brief. Our appellate courts have held ad nauseum

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that this court will not perform the research or develop arguments for appellants. See Cullen v.

State, 2023 Ark. 172, 678 S.W.3d 20; Jenkins v. State, 2019 Ark. App. 419, 582 S.W.3d 32; Jester

v. State, 367 Ark. 249, 239 S.W.3d 484 (2006); Hathcock v. State, 357 Ark. 563, 182 S.W.3d 152

(2004). We could stop at that point and end the discussion and deny the motion. However,

for the sake of argument and clarity, we note that the proper appellate rule to determine whether

a brief filed in a civil appeal is timely filed is Arkansas Supreme Court Rule 4-4(h)(1), which

provides the following in pertinent part:

(1) The Clerk or a deputy clerk may extend the due date of any brief by seven (7)
calendar days upon oral or electronically filed request. The party requesting a Clerk's
extension must confirm the extension by sending a letter, by electronic filing,
immediately to the Clerk or the deputy clerk with a copy to all counsel of record and any
pro se party. If such an extension is granted, no further extension shall be granted except
by the Clerk for compliance with these Rules as provided in Rule 4-2(c) or by the Court
upon a written motion showing good cause.

(Emphasis added.)

So, giving the incarcerated appellant the benefit of the doubt, the narrow question

presented in this motion is whether the appellant has shown “good cause” for the extension of

the due date. What is the appellant’s “good cause?” The appellant clearly states his cause in his

petition: “appellant was under the impression that Ark. R. App. P. (Crim.) Rule 2(b)(3)

concerning the mailbox rule not only applied but was the proper method of a timely filed brief.”

Unfortunately, the appellant’s impression that Arkansas Rule of Appellate Procedure–Criminal

2(b)(3) applies to briefs is incorrect. That begs the question: Is ignorance of the law “good

cause?”

It is important to recall that the appellant “mailed” his brief on the due date. Again, we

have held ad nauseum that this court holds unrepresented appellants to the same standard as

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represented appellants. All litigants, including those who proceed pro se, must bear

responsibility for conforming to the rules or demonstrating good cause for not doing so. Peterson

v. State, 289 Ark. 452, 711 S.W.2d 830 (1986); see also Ross v. State, 2011 Ark. 270, at 2; Smith v.

State, 2011 Ark. 367; Wright v. State, 2010 Ark. 474, at 2; Walker v. State, 283 Ark. 339, 340, 676

S.W.2d 460, 461 (1984). Further, our appellate courts have repeatedly held that “ignorance

alone” or “a lack of knowledge of the rules in itself” does not excuse an appellant of his

responsibility to conform to the rules. Garner v. State, 293 Ark. 309, 310, 737 S.W.2d 637, 638

(1987); Walker, supra; see also Smith, supra; Ross, supra. In fact, the supreme court has specifically

stated that “if merely declaring ignorance of the rules of procedure were enough to excuse lack

of compliance, it would be just as well to have no rules since an appellant could simply bypass

the rules by claiming a lack of knowledge.” Garner, 293 Ark. at 310, 737 S.W.2d at 638.

Where does that leave us? Does the appellant’s misunderstanding of the prison mailbox

rule constitute good cause for extending the due date for a brief under Arkansas Rule of

Appellate Procedure–Criminal 2(b)(3)? Or, stated differently is “ignorance of the law” good

cause? I believe that the answer is no. If we answer yes to that question, we start a journey down

a slippery slope that cannot be restrained. In the future, which “ignorance of the law” argument

will we determine to be “good cause,” and which “ignorance of the law” argument will not be

“good cause.” Until the supreme court removes the qualifier “good” from “good cause” in

Arkansas Supreme Court Rule 4-4(h)(1), it is our charge to interpret the rule as written. Thus,

I would deny appellant’s motion for belated brief and must respectfully dissent.

KLAPPENBACH, GRUBER, THYER, and WOOD, JJ., join in this dissent.

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